Some of the Answers Only Prompt More Questions
The intent of ICC Opinions is to address queries received from ICC National Committees and respond with a carefully worded analysis and conclusion that will benefit and guide the international banking community. Often, this goal is achieved. In other instances, Draft Opinions put forth by the ICC Banking Commission Technical Advisers raise more questions than answers.
The following examples are excerpts from the April 2016 ICC Banking Commission Meeting in Johannesburg:
TA841 Analysis – “‘Extend or pay’ demands do not usually occur within normal trade-related credits issued in accordance with UCP600 provisions.”
TA841 Questions – Should this Opinion recommend use of ISP98 instead of UCP600 for standby credits? Why is expiration outside of UCP?
TA842 Analysis – “[T]he credit included a condition that all documents were to be signed. Based in this condition, all presented documents including copies must be manually signed.”
TA842 Questions – Does UCP600 define a copy? Should this Opinion define meaning of “all documents”? Does this Opinion change the interpretation of “all documents” when used in a credit?
TA843 Conclusion – “There are no specific guidelines and criteria set forth under UCP600 to distinguish a photocopy from an original printout, irrespective of whether it is in black and white or in colour … .“
TA843 Question – Is a black and white printout of a PDF file an original?
TA846 Analysis – Lacking any information in the query to the contrary, containers are not to be considered packaging.
TA846 Question – Could containers be taken as packaging? Does a Master’s notation that the marks of some containers are not clear or are missing affect the condition of goods or packaging?
TA849 Conclusion – “A confirming bank may decline to honour or negotiate under its undertaking when prohibited by applicable law or regulation from doing so.”
TA849 Questions – What is the impact of an opinion concluding that a confirming bank “may decline” to honour or negotiate? Is it appropriate for the ICC Banking Commission to determine what does or does not constitute a sanctions clause?